Delivered
by the Hon. Mr. Justice B.K. Molai on the 27th day of September.
1984.

The
appellant (hereinafter referred to as accused 1) and two others
appeared before the Subordinate Court of Leribe charged with
contravening s. 3 (a) of Dangerous Medicine Act No. 21 of 1973, it
being alleged that on or about 5th September, 1983 at or near
Mpharane in the District of Leribe they each or both or all
wrongfully and unlawfully dealt in 9 bags of dagga weighing 151
kilograms
without permit.

Accused 1
and 2 pleaded not guilty but accused 3 pleaded guilty to the charge.
The public prosecutor did not, however,accept the
plea of guilty
tendered by accused 3 and the trial proceeded as if all the three
accused had pleaded not guilty.

At the
end of the trial, all the accused were found guilty as charged. A
sentence of 2 years imprisonment was imposed on accused
1 and 2.
Accused 3 was sentenced to a fine of R500 or 15 months imprisonment
in default of payment of the fine.

Only
accused 1 has appealed against both his conviction and sentence on
the grounds that the conviction was against the weight of
evidence
and the sentence excessive.

In
support of its case, the crown called two traffic police officers who
testified on oath that at about 8 p.m. on 5th September,
1983, they
were on duty at Mpharane when

2

they
noticed a vehicle with registration Nos D1507. The vehicle appeared
to be loaded with something on its back. They followed
and stopped
it. When their vehicle was stopped, the occupants tried to escape and
run away but the police officers ordered them
to stop and they did.
They were found to be the three accused. They were asked what was on
their vehicle and accused 3 replied
that it was the property of
accused 1 and 2. This was said in the presence and hearing of accused
1 and 2 who did not, however,
object. On inspection, the vehicle was
found to be loaded with the 9 bags of dagga. A permit authori­sing
them to be in possession
of the dagga was demanded from the three
accused but none of them produced any. All the accused were brought
to Maputsoe police
station together with the dagga. The dagga was
subsequently weighed in the presence of the accused when it was found
to weigh 151
kilograms. The accused were cautioned and charged as
aforesaid.

Accused 1
and 2 did not testify on oath but made unsworn statements from the
dock. They told the court that on the night in question
they were
from accused 1's home at Fobane in the area of Mapoteng. Accused 3
who was travelling in the vehicle Registration No.
D 1507 gave then a
lift on the way. When they came to Mpharane, the vehicle was stopped
by the police officers who asked what was
loaded on the vehicle.
Accused 3 said it was loaded with their property but accused 1 and 2
denied. When it was inspected, the
vehicle was found to be carrying
the 9 bags of dagga. They were then arrested and taken, together with
the dagga, to Maputsoe where
they were formally charged after the
dagga had been weighed. Accused 1 and 2 denied that they knew that
accused 3 was conveying
dagga in his vehicle and said they had,
therefore,nothing to do with the dagga.

The
evidence of accused 3. who testified on oath, was that earlier on the
day in question he was approached by accused 1 and 2 and
a third
person who was not charged. He was asked to convey the dagga for
M100. Accused 1 and 2

3

were to
show him where the dagga was to be found in the area of Mapoteng. He
accepted and left with accused 1 for the dagga. Accused
2 had gone
ahead to arrange the dagga where it was to be collected. Accused 1
directed him to the spot where they found accused
2 with the dagga.
They loaded the dagga and returned. Accused 3 confirmed that when
they came to Mpharane on their way back, they
were stopped by the
police officers who asked what was loaded on the vehicle and he
replied that it was the property of accused
1 and 2. He further
confirmed that accused 1 and 2 had never denied that what was loaded
on the vehicle was their property which
was found to be dagga. They
were then arrested and brought to Maputsoe police station together
with the dagga.

According
to the trial magistrate, if the dagga were not their property, as
accused 1 and 2 claimed, a natural reaction for them
would have been
to object immediately when, in their presence and hearing, accused 3
told the police officers that it was. He accepted
the evidence of the
police officers supported by accused 3 that accused 1 and 2 never
objected that the dagga was their property.

It was
not disputed that the dagga was found in the vehicle in which the
accused were travelling and it weighed 151 kilograms. On
the face of
it, there was a rebattable presumption, under the provisions of
s.30(i)(a) of the Dangerous Medicine Act, supra, that
the accused
were dealing in dagga. Accused 3 made no attempt to rebut the
presumption. Accused 1 and 2 disputed possession of and,
therefore,
dealing in the dagga. The evidence of accused 1 and 2 was, however,
rejected in favour of the evidence of the police
officers and accused
3.

As has
been pointed out earlier while accused 3 testified on oath, accused 1
and 2 made unsworn statements from the dock. The terms
in which the
rights of the accused, who were not represented at the trial, were
explained at the close of the Crown case are not
clear from the
record of proceedings. But, as accused 1 and 2 were allowed to make
unsworn statements from the dock while accused
3

5

Act,
1981, it seems to me that our position has changed from that of South
Africa and the law as stated in S. v. Vezi supra, no
longer applies
in full i.e. although, under the new Act, we have S. 220 which is
worded in the same terms as the repealed S. 215(1)
of the Criminal
Procedure and Evidence Proclamation, supra, we no longer have S.
214(3). Instead we have section 217(3) which clearly
provides:

"(3) an accused may not make an unsworn statement at his trial
in lieu of evidence but shall, if he wishes, do so on oath,
or as the
case may be, on affirmation." (my underlining)

The use
of the word "shall" in the above quoted section makes it
mandatory for an accused person to testify on oath if
he wishes to
but he can no longer make a

statement
from the dock. That being so, the trial magistrate clearly misled the
accused by explaining to them that they had a right
to make an
unsworn statement from the dock in terms of the decision in S.v.
Vezi, supra. If he explained the accused's rights in
terms of the
three alternatives stated in that decision, it must be accepted that
the trial magistrate took the view that their
unsworn statements
carried less weight than the sworn evidence of the police officers
and accused 3- It was obviously a misdirection
on the part of the
magistrate. The accused simply had no right to make unsworn statement
from the dock.

In -my
view, the trial magistrate cannot be permitted to mislead accused 1
and 2 into believing that they have a right to make unsworn
statements from the dock and then turn round and say their statements
carried leas weight. It was a serious irregularity which
no doubt
prejudiced the case of accused 1 and 2. On this ground alone their
conviction cannot be allowed to stand.

Although
accused 2 did not lodge an appeal, the interests of justice demand
that he be treated in the same manner as accused 1.
As regards
accused 3, who testified on oath, it cannot be justifiably said the
irregularity prejudiced his defence and he, therefore,
deserved the

4

testified
on oath, it can safely be presumed that the accused's rights were
explained in terms of S. v. Vezi 1963 (1) S.A. 9 according
to which
decision :

" An accused who is unrepresented at his trial should be
afforded an explanation of the courses open to him at the close of
the prosecution case, namely, that he may give evidence on oath or
make an unsworn statement from the dock, that if he decides
upon the
latter course he may not be cross-examined nor questioned by the
court, but that generally evidence on oath carries more
weight, or
that he may remain silent if he so wishes." (vide-the head note)

The
decision in S. v.Vezi, supra. was, however, based on Sections 220(1)
and 227(3) of the South African Criminal Procedure Act
No. 56 of 1955
(as amended). It is perhaps useful to quote the sections :

"220 Oath. - (1) No person other than a person described in
section two hundred and twenty-one or two hundred and twenty-two
shall be examined as a witness otherwise than upon oath......"

"227 ......................................

(3) Nothing in this section shall affect any right of the accused to
make a statement

Under our
now repealed Criminal Procedure and Evidence Proclamation No. 59 of
1938 we had corresponding Sections 215(1) and 214(3)
which read as
follows:

"215(1). It shall not be lawful to examine as a witness any
person other than a person described in either of the next two
succeeding sections, except upon oath."

"214 ....................................

(3) Nothing in this section shall affect any right of the accused
person to make a statement without being sworn.........."

Because
the sections of our old Criminal Procedure and Evidence Proclamation
No. 59 of 1938 were more or less identical with the
sections of the
S.A. Criminal Procedure Act, supra, the decision in S. v. Vezi 1963
(1) S.A. 9 has always applied in Lesotho. However,
with the coming
into operation of our new Criminal Procedure and Evidence

5/ Act,
1981, it .......

-6-

same
treatment as accused 1.

In the
circumstances, both the convictions and sentences of accused 1 and 2
are set aside. I, however, find no good reason to disturb
the
conviction and sentence against accused 3. It is ordered that accused
1 be refunded his appeal deposit.